Daniel Smith by his tutor Debra Smith v South Western Sydney Local Health Network [2017] NSWCA 123

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Daniel Smith by his tutor Debra Smith v South Western Sydney Local Health Network [2017] NSWCA 123 Hearing dates: 25 July 2016 Decision date: 31 May 2017 Before: Meagher JA at [1]; Gleeson JA at [2]; Payne JA at [192] Decision: (1) Appeal dismissed.

(2) Appellant to pay the respondent's costs. Catchwords: APPEAL AND NEW TRIAL – appeal – new point raised on appeal not taken below – where appellant attempted suicide at home while on a period of leave from a mental health facility – where primary judge found respondent had breached its duty of care by failing to provide adequate advice to the appellant and his parents that alcohol and contact with his ex-fiancée were stressors to be avoided, and if his parents were concerned about his condition to telephone the respondent for advice or return the appellant to hospital – where appellant sought to reformulate the content of the duty of care on appeal - where alleged breach of duty involved the failure to advise the appellant's parents to immediately return the appellant to hospital if the appellant was exposed at all to either stressor – whether appellant could rely on new case on appeal – whether cross-examination by the respondent likely to be different – whether appellant had otherwise demonstrated exceptional circumstances justifying the Court entertaining the new point. TORTS – negligence – essentials of action for negligence – where appellant attempted suicide at home while on a period of leave from a mental health facility – causation – whether respondent's breach of duty as found by the primary judge caused the appellant to attempt suicide – where appellant advanced alternative counterfactuals based on evidence of what the appellant's mother would have done in a hypothetical situation – where primary judge found that no real weight could be given to such evidence – whether appellate court should interfere with the primary judge's assessment of such evidence – whether appellant's consumption of two beers and text messages with a friend that related to his ex-fiancée were causally connected with his later decision to attempt to commit suicide – whether factual findings open to primary judge Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5D, 43A Interpretation Act 1987 (NSW), s 5(2), 36(1) Mental Health Act 1990 (NSW), s 20 Mental Health Act 2007, ss 12, 15, 18, 19, 27, 31, 47 Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73 Bonnington Castings Ltd v Wardlow [1956] AC 613 Coulton v Holcombe (1986) 162 CLR 1 at 78; [1986] HCA 33 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gardner v Duve (1978) 19 ALR 659 Hunt and Hunt Lawyers (a firm) v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10 Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44 Metwally v University of Wollongong (1985) 60 ALR 68 Roads and Maritime Services v Grant [2015] NSWCA 138 Smith v Pennington [2015] NSWSC 1168 State of New South Wales v Mikhael [2012] NSWCA 338 Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12 Wallace v Kam (2012) 250 CLR 375; [2013] HCA 19 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 Whisprun v Dixon (2003) 77 ALJR 1598; [2003] HCA 48 Zanner v Zanner (2010) 79 NSWLR 702; [2010] NSWCA 343 Texts Cited: Prof James Reason, Human Error, (1990, Cambridge University Press) Category: Principal judgment Parties: Daniel Smith by his tutor Debra Smith (Appellant) South Western Sydney Local Health Network (Respondent) Representation: Counsel: Mr D Higgs, SC with Dr E Peden and Ms V Thomas of counsel (Appellant) Mr R Cheney SC with Mr H Chiu of counsel (Respondent)